Sunday, October 13, 2013

Expulsions threaten Israeli democracy

Israel’s violation of basic civil rights stems from “emergency laws” enacted during the British Mandate.

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

Written 800 years ago in the Magna Carta, this is one of foundations of English common law and the US Bill of Rights. Prohibiting arbitrary arrest and punishment is a fundamental aspect of every democracy.

Israel, however, seems to be an exception. The expulsion of Boaz Albert and his family from Yitzhar is a good example.

He was never told of what crime he was accused, or why he was being expelled; there was no trial.

Since the expulsion was ordered by the military administration, an appeal to those who gave and approved the order is an exercise in futility. Although the High Court has ruled that the Basic Law applies to every citizen, regardless of where he lives, it offers no remedy, since the order is legal according to Israeli law.

A legal absurdity, it recalls Franz Kafka’s novel, The Trial, about a man who is arrested and imprisoned, with the nature of his crime never being revealed to him, or to the reader.

Albert’s case seems to be punishment without a crime.

(Albert wrote “Why I decided to violate the administrative expulsion order,” Jerusalem Post Magazine, September 13, 2013.) Expelling Jewish citizens and heads of families from their homes and prohibiting them from living in Judea and Samaria for up to a year, or be imprisoned – without just cause or due process – violates civil and humanitarian law. Such politically motivated actions defy all democratic and judicial norms.

Since the reason for Albert’s expulsion is “confidential,” there is no way he can refute it, or defend himself in court.

This seems to violate Israel’s Basic Law, especially section 5: “There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise.”

If there is evidence of criminal activity, the accused should be arrested and tried.

Expelling people from their homes and avoiding normal legal procedures either because evidence is weak, or non-existent challenges the entire legal system.

Israel’s violation of basic civil rights stems from “emergency laws” enacted during the British Mandate.

But “emergency laws” are unnecessary when proper civil laws are available.

Although the Edmund Levy commission proposed a remedy, Attorney-General Yehuda Weinstein refuses to pass it on to Prime Minister Binyamin Netanyahu – who hasn’t objected.

Depriving citizens of their rights and punishing them without charging them in court, without the ability to confront the accusations against them, without a fair and impartial trial, and without a chance to defend themselves, is undemocratic and unjust.

That is why Albert refuses to accept the expulsion order. His courageous act of civil disobedience seeks to expose a legal injustice.

The jurisdictional problem is complicated because “Area C” of Judea and Samaria is under Israeli military administration and Israel has not extended civilian law over this area. Yet, all other Israeli laws are enforced there, such as taxes, traffic violations, national service, etc. Why are expulsions an exception? That some Basic Laws don’t apply to Israelis who are accused of being a “danger to public safety” – without demonstrative proof – because they live in Judea and Samaria undermines the very idea of fair and impartial rule of law.

Carrying out punishments which are questionable and certainly legally compromising puts the credibility of the state itself at risk. When the state abuses its power, it becomes a weapon against its own legitimacy.

In 1948 we overcame British occupation; in 1967 we liberated Judea, Samaria and Jerusalem from Jordanian occupation and Golan from Syria. But we are still chained to their anti-Jewish and anti-Zionist laws. Does that make sense?

The author is a PhD historian, writer and journalist living in Jerusalem.

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